Dershowitz: NY AG James Disqualified From Investigating Cuomo Further

The report by New York Attorney General Letitia James has now resulted in the decision by Gov. Andrew Cuomo to resign. But this might not be the end of the matter. Cuomo faces criminal investigation by several districts attorney and possibly by the attorney general.

James should be disqualified from any further investigation of Cuomo as a result of her declaring one gender should be believed over another. Nor should her report, based on this gender bias, become the basis for any further actions.

James announced categorically, "I believe women," and "we should believe women." That is no different from an attorney general declaring, "I believe whites," or "I believe Jews," or "I believe gays," or "I believe Muslims," or "I believe men."

Identity politics has no place in law enforcement. Every attorney general should declare, "I believe evidence," or "I believe facts," or "I believe truth."

No one has the right to be believed because of their gender, or race, or religion. And no one should be disbelieved because of such group identity. It was not long ago when in parts of the deep South, it was the unwritten law, the testimony of a Black witness would not be believed against the testimony of a white witness.

Those racists "believed" whites and disbelieved Blacks.

Nor was it long ago, in some parts of the world, the word of a Jew would not be credited against the word of a Christian. Also, in some cultures, the evidence given by a woman is worth less than that of a man.

We now rightly call that bigotry.

Well, it is just as bigoted to believe women, as a group, over men.

Yet, that is what Attorney General James appears to have asserted: "We should believe women" as a gender when they accuse men. She disbelieves men as a gender when they deny such an accusation.

This is not only rampant bigotry; it is unconstitutional, when it becomes the basis for state action.

The rules of evidence must be identical for men and women. State officials may not prefer the testimony of one gender over another. But Attorney General James boasts to the world she does just that and so should we all.

James cannot be trusted, therefore, to render objective and gender neutral prosecutorial judgments in cases involving the credibility of women and men, any more than a judge could be trusted if he announced at the beginning of a trial that "I believe men."

There is no credible evidence women are inherently more believable than men. There is no gender specific gene or cultural norm for truth telling. But, even if it were true women who accuse men are, as a group, likely to be telling the truth, no attorney general should be allowed to apply such a generalization to a particular case.

But that seems to be exactly what James did when she said: "I believe women" and "I believe these 11 women."

It is not clear whether James herself interviewed all of these women. It is clear they were not subjected to truth-finding mechanisms such as adversarial cross examination. It seems she just trusts women to tell the truth when they accuse men, without regard to the evidentiary specifics.

It is one thing to say women should not be disbelieved, as they too often were, especially in the context of sexual accusations. All such accusations must be taken seriously and investigated carefully.

At that point, not only must evidence prevail over identity, but gender must not create any presumption or become a thumb — or even a pinkie — on the scale of justice. All investigations must be conducted with an open mind as to who is telling the truth, especially when the accused categorically denies the accusation, as Cuomo did with regard to improper touching. It does not appear Attorney General James has such an open mind if she believes one gender over the other before the accused has had the opportunity to cross examine the accuser.

It is also one thing for a politician to declare he or she believes women as a general matter, then to make such a gender specific assertion while announcing the results of a prosecutorial investigation of a man who has categorically denied the most serious accusations and has thus challenged the believability of his female accusers.

They may well be telling the truth and he might be lying, but that should be decided by the weight of credible evidence, not by a priori assumptions based on gender stereotypes.

So, let the investigations go forward. Let's believe all credible accusers and thoroughly investigate their claims. But once the investigation is completed, let's believe the evidence without gender bias.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law Emeritus at Harvard Law School and author of "Guilt by Accusation" and "Case Against the New Censorship: Protecting Free Speech from Big Tech, Progressives, and Universities."